[2004] KEHC 1996 (KLR)
The court found that the defendant's tractor driver was solely responsible for the accident, having hit the deceased from behind while he was pushing his bicycle, and that the evidence of the sole eyewitness was unchallenged. The defendant, being the employer, was held vicariously liable for the driver's negligence....
Source-derived case information.
- Citation
- [2004] KEHC 1996 (KLR)
- Parties
- Plaintiff: Ambrose Oluoch Otieno (suing as personal representative of Kenneth Onyango Oluoch – Deceased); Defendant: Chemelil Sugar Co. Ltd.
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- ? 242 of 2002
- Procedural Posture
- Civil Suit / Ex Parte Judgment After Defendant Failed to Appear at Hearing
- Outcome
- Judgment for the plaintiff against the defendant.
- Judges
- K Bauni
- Legal Topics
- Fatal Accidents, Vicarious Liability, Damages Assessment, Special Damages, Loss of Dependency
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ambrose Oluoch Otieno (suing as personal representative of Kenneth Onyango Oluoch – Deceased)
Plaintiff
Chemelil Sugar Co. Ltd.
Defendant
Procedural Posture
Civil Suit / Ex Parte Judgment After Defendant Failed to Appear at Hearing
Legal Issues
- 1 Whether the defendant was liable for the accident that caused the death of the deceased.
- 2 What quantum of damages is payable to the plaintiff as a result of the deceased's death.
Ratio Decidendi
The court found that the defendant's tractor driver was solely responsible for the accident, having hit the deceased from behind while he was pushing his bicycle, and that the evidence of the sole eyewitness was unchallenged. The defendant, being the employer, was held vicariously liable for the driver's negligence. The court applied the principles of damages assessment under the Law Reform Act and Fatal Accidents Act, awarding special damages as pleaded and proved, and using the multiplier-multiplicand approach to calculate loss of dependency. The court also considered the deceased's age, potential future earnings, and the period of pain and suffering before death. The total award was...
Court Disposition
Judgment for the plaintiff against the defendant.
Orders
- The defendant shall pay the plaintiff special damages of KES 2,000.
- The defendant shall pay the plaintiff KES 100,000 for loss of expectation of life.
Full Case Text
Judgment text and source record
53 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CIVIL SUIT NO.242 OF 2002
AMBROSE OLUOCH OTIENO …………………………………………… PLAINTIFF
(suing as personal representative of
KENNETH ONYANGO OLUOCH – DECEASED)
VERSUS
CHEMELIL SUGAR CO. LTD. …………………………………………. DEFENDANT
JUDGMENT:
AMBROSE OLUOCH OTIENO has brought this suit as the administrix of the Estate
of the late KENNETH ONYANGO OLUOCH who was his son.
On 26th February 2000 the plaintiff sent his son to a nearby market to have his bicycle
repaired. On the way Kenneth was hit by a tractor belonging to the defendant company.
He was injured and taken to hospital. He died on 7th March 2000.
The defendant filed a defence but failed to appear on the hearing day. Case proceeded
ex parte.
The first issue is that of liability. In their defence the defendant had pleaded that the
deceased was to blame for the accident. There is no doubt that the accident occurred.
The deceased was hit by the tractor and died several days after.
VINCENT ODHIAMBO ODUMA (PW2) told the court that he witnessed the
accident. He was at the scene. The deceased was riding in the same direction the tractor
was traveling. He was pushing the bicycle. The tractor came from behind and hit him.
The driver did not even hoot to warn him. That was the only eye witness who testified.
His evidence was not contradicted.
It is therefore clear that the tractor driver was to blame. He hit the deceased from behind
as he pushed the bicycle. I find that he was 100% to blame. Being a servant of the
defendant, the defendant is vicariously liable.
Plaintiff said he spent shs.3000/= for a coffin. However he chose not produce any
receipts. The only receipts produced were for shs.18,945/= medical expenses. However
he had only pleaded shs.2000/= in the plaint. I award the same as special damages.
As for loss of expectation of life the deceased was 17 years old. Court was referred to
the case of LABAN NJOGU WAINAINA –vs.- DAVID KARIUKI KINGORI NBI
HCCC NO.4148 where shs.80,000/= was awarded for a deceased aged 15 years. The
case is an old one. I will award a sum of shs.100,000/= for loss of expectation of life.
For pain and suffering the deceased died 10 days after the accident. I concur he must
have suffered pain and suffering. I will award shs.30,000/= under that heading.
As for loss of dependency court was told that the deceased though a student was part
time carpenter and was earning shs.1800/= per month. There was no evidence called to
support that but I believe if he had shown an interest in carpentry he most probably would
have grown up to be one. I would put his monthly earning to shs.1,500/=.
As he was 17 years I will take a multiplier of 20 years and dependency ratio of 1/3 thus:
1,5000/= x 20 x 12 x 1/3 = 120,000/=.
I therefore enter judgment for plaintiff against dependant as follows:
1. Special damages ……………………………………… shs.2000/=
2. Loss of expectation of life ……………………………. shs.100,000/=
3. Pain and suffering …………………………………….. shs.30,000/=
4. Loss of dependency …………………………………… shs.120,000/=
Total shs.252,000/=
The plaintiff will also have costs of the suit and interest.
It is so ordered.
Dated and delivered at Kisii on 19th March 2004.
KABURU BAUNI
JUDGE